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New Decision: Constitutional Analysis (Advisory Opinion to the Governor: Amendment 4 Voting Restoration)

Michael Gelfand 1/22/2020

Thursday the Supreme Court of Florida issued a decision with two opinions responding to the Governor’s request in Advisory Opinion to the Governor Re: Implementation of Amendment 4, the Voting Restoration Amendment, Case No. SC-19-1341 (Fla. January 16, 2020).

The opinions, the per curiam and the Justice Labarga’s concurring/dissent, are circulated not to apprise you of the decision which presumably you have read in other media, nor to address the substantive issue of voting rights, nor even to consider the correct interpretation of the Constitutional Amendment.

Instead, the opinions are circulated to frame what will affect our clients, the decision-making processes which if adhered to will impact future decisions, including in our areas practice which are far from the substantive issue in the matter before the Court. The DCA’s and trial courts will presumably follow the Supreme Court’s lead.

Thus, this email provides a “heads up” as to the Court’s approach, perhaps more important now in light of a seeming trend in Florida Supreme Court decisions receding from precedent. For example consider including the decisions at the end of the year, especially December 19, 2019 opinions.

Consider the Justices’ battle between the opinions over application of “supremacy-of-text principle,” the majority and the dissent disagreeing as to the principle’s meaning, including whether the principle is strong or flawed, and whether the principle has been consistently applied.

As you focus upon the majority opinion’s parallel to statutory construction and you may reflect how this Court’s “supremacy-of-text principle” approach may narrow interpretation of statutes that our clients utilize, perhaps leading to new interpretations that seem on the surface logical from words plucked from a statute, but perhaps yes, or perhaps not, intended by the drafter(s) or the Legislators that voted for the statute. It appears that the touchstone of intent of the drafter, or in the case constitutional amendments, intent of the people, is actually not to be considered if the words are not ambiguous.

This has been a battle waged in other courts for a bit of time. It now is here, as the Court expressly acknowledges. It is interesting that the Justices are using the Amendment 4 debate to roll out their thoughts. As a collateral consideration, will supremacy of text marginalize the golden parachute of statutory interpretation, refusing strict a reading that would lead to a ridiculous or absurd result?

On the substance of the decision, it is noted that the opinion’s differences on this point do not lead the writers to different conclusions on the merits, the decision is unanimous as the dissent actually concurs, 5-0. Only five Justices participated as there are two vacancies on the Court.

Oh yes, this vanilla brief-brief does not mean that this writer does not have thoughts on the substantive issue, but as the creator of Condominia and especially sharing concerns as to Condomania’s future, those substantive thoughts are for another time, off line!

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2020 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke

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